Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - MODERN LAW OF PERSONAL PROPERTY IN ENGLAND AND IRELAND
MODERN LAW OF PERSONAL PROPERTY IN ENGLAND AND IRELAND by A.P. Bell, M.A., L.S.P. en Dr Eur., Lecturer in Law, Centre for Law and Business, University of Manchester. Butterworths, London and Edinburgh (1989, Ixiv and 544 pp., plus 13 pp. Index). Hardback £65.
The declared aim of this well written and well produced book is “to examine, in the context of English and Irish law, what interests may exist in personal property” (Preface, vii). Lawyers will be familiar with the aphorism that the law is a seemless web—an injunction to look at the whole cake. Of course, the justification for dividing that cake into slices is to render it more digestible. The key question for this reviewer is whether in the latter part of the 20th century personal property is such a digestible slice, albeit an incoherent one (p. 23).
The notion of personalty which developed was essentially negative: it embraced all that property which was not real property (p. 1; and O.E.D.); and, by the late 19th century, the Council of Legal Education was appointing a Reader in the law of real and personal property (H.E.L. (1965), XV, 369–370). From 1875 to 1880, that appointment was held by Joshua Williams, who had earlier made his name by the publication of his Principles of the Law of Real Property (1st edn., 1845). At first, the work included a chapter on personal property; but that material was soon hived off into a separate Personal Property (1st edn., 1848). A similar route was followed by Goodeve, who also produced separate volumes on Real Property (1st edn., 1883) and Personal Property. By the time the latter work went to a second edition (1892), the learned authors had already consciously omitted most of the rules that were essentially contractual and added material on the theory of possession (inspired by Pollock & Wright’s Possession in the Common Law) but essentially concentrated on proprietary rights in some 15 different sorts of personal property, plus chapters on Executions, Bankruptcy, Limitations, Death and Disability. By the eighth edition (1937), the then editors were complaining about the “somewhat fragmentary character of personal property” (Preface, iii), though the same pattern was continued in the ninth edition (1949).
After 1945, the subject took a new direction. Crossley Vaines (1st edn., 1954) jettisoned many branches of the subject, including patents, trademarks, copyright, insurance, company law, ships, debts and guarantees, wills and intestacy, and disabilities. Instead, he concentrated (within 290 pages) on “the legal incidents of possession [in order to] demonstrate how personal property is acquired and transferred” (Preface). Even so, by the fifth edition (1973) the editors had expanded the book to 602 pages. The work presently reviewed has continued the process of reducing the number of branches of the subject treated in its 23 chapters (to bailment; possessory securities; non-possessory securities; sale of goods; credit; chose in action; and negotiable instruments) while increasing the space devoted to theoretical concepts (property rights; real and personal property; possession; ownership) and “equity” (equitable interests; secret trusts; priorities; tracing).
But the central problem with writing a book on personal property remains: For whom is the author writing (at £65)? The 19th century books referred to above were essentially for bar students, their major characteristic being a few pages devoted to each of a large number of branches of law. This led one commentator (H.E.L., XV, 298) to observe:
Practitioners generally refer to … special treatises [on particular subjects], so that books
on personal property have always been used chiefly by students.
Crossley Vaines claimed that his book was “primarily for students, though [he hoped] it would find favour with practitioners as a handy guide to questions of title …” (1st edn., Preface). Perhaps significantly, Mr Bell does not indicate a market, while claiming to find “a
280